Brilliance remembered.
Twenty years ago Daniel Farber cofounded Constitutional Commentary. (1) Dan's essay on McCulloch v. Maryland, (2) "Banking on National Power," concludes the twentieth volume of this journal. (3) Among his many achievements in twenty-two years on the faculty of the University of Minnesota Law School, Dan helped secure Constitutional Commentary's place as one of America's preeminent law journals. As of 2004, Dan will be teaching full-time at the University of California at Berkeley. Once again, glitzy California has snagged one of gritty Minnesota's best. (4) Though we hope that Dan will continue writing for Constitutional Commentary, "Banking on National Power" represents the last time he will appear in these pages as a member of the Minnesota law faculty and as an editor of this journal. As much as we wish we could travel back in time, change history, and thereby prevent Dan's departure, (5) we must accept the truth. Adios amigo, y viva Las Vegas: Elvis has left the building.It is altogther fitting and proper that Dan's farewell to Constitutional Commentary and to Minnesota should address the enduring legacy of a decision that is arguably the most important case in American law. At least one empirical study of citation counts ranks McCulloch the most influential Supreme Court decision of all time. (6) McCulloch's relative importance is fiercely contested, of course. Some observers consider Brown v. Board of Education (7) "the most important decision in the history of the Court." (8) The iconic Marbury v. Madison (9) has its fans, (10) too, but Dan casts his favor elsewhere. By his own admission, Dan has reached the "unromantic" conclusion that judicial review "thrives by default because none of the alternatives are palatable." (11) Earlier in this volume of this journal, Dan provided a characteristically sober and witty assessment of Marbury and its legacy: "[T]he judiciary's views of constitutional doctrine are not final because the judiciary is supreme. Rather, its doctrines are supreme because its decisions are final." (12)
Whatever its competition, McCulloch stands tall. That case reminded us, after all, that "it is a Constitution we are expounding." (13) This benediction is "the single most important utterance in the literature of constitutional law." (14) Even scholars who begrudge Marbury's reputation as a "masterwork of indirection" (15) concede "that every major issue of constitutional interpretation and institutional power is instantiated in the forty-year-long debate about the constitutionality of the Bank" of the United States and its climax in McCulloch. (16)
McCulloch described the Constitution as a durable document "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." (17) As Liz Phair would put it, "good flaw] never dies." (18) Throughout his career at Minnesota and over the course of his affiliation with this journal, Dan Farber has been no less "comprehensive and ... comprehending." (19) Dan's work has appeared in eighteen of Constitutional Commentary's twenty volumes to date. (20) As befits the overall oeuvre of one of America's most versatile and productive scholars, Dan's contributions to this journal have spanned the full range of issues in constitutional law. He has applied economic analysis and humor--two tools rarely found in combination--to subjects as diverse as abortion, (21) the Eleventh Amendment, (22) and the inherent tendency of legal scholarship to devalue all constitutional doctrine. (23) From a tongue-on-teeth look at legal scholarship from a dental perspective (24) to thoughtful contemplation on the true meaning of equal protection, (25) Dan s contributions have ranged from the playful to the profound. In all, he has written no fewer than thirty-six items for this journal. (26) As an editor, a colleague, and a writer, he has been invariably--dare we use the word?--brilliant. (27) But for his decision to leave us for California, Dan Farber would be Constitutional Commentary's (almost) perfect founder. (28)
Ever the pragmatist, Dan might dispute the practical value of commemorating his efforts to establish Constitutional Commentary as a journal of the first rank. Cognizant that a "science which hesitates to forget its founders is lost," (29) that "progress in a scientific discipline can be measured by how quickly its founders are forgotten," (30) Dan might even go so far as to encourage his successors to forgo this little tribute to his tenure as this journal's prime mover during its first two decades. (31) Those of us charged with extending Constitutional Commentary's legacy will not let Dan be so modest. Dan might have thought that his successors would little note, nor long remember, what he wrote as a cofounder and an editor of this journal, but we who have seized his baton will never forget what he did here. (32) Daniel Alan Farber, to put it simply, is quite possibly the greatest scholar ever to have taught at the University of Minnesota Law School. Constitutional Commentary represents a small but important part of his towering legacy. If we at Minnesota forge a new birth of wisdom, legal scholarship in Dan Farber's tradition shall not perish from this school.
(1.) David Bryden was Dan's partner in founding Constitutional Commentary. Professor Bryden contributed no fewer than fifteen pieces to this journal from 1984 to 1991.
(2.) 17 U.S. (4 Wheat.) 316 (1819).
(3.) Daniel A. Farber, The Story of McCulloch: Banking on National Power, 20 CONST. COMMENT. 679 (2003-04).
(4.) Hear THE BUGGLES, Video Killed the Radio Star, on THE AGE OF PLASTIC (UNI/Mercury 1980); hear also WOODY GUTHRIE, Do-Re-Mi, on DUST BOWL BALLADS (RCA 1940) ("Lots of folks back East, they say, is leavin' home every day, / Beatin' the hot old dusty way to the California line."). Philip Frickey also left Minnesota for Berkeley, and Donald Dripps will be joining the University of San Diego's law faculty in fall 2004. Tennessee may lack California's legendary glamor, but Vanderbilt University does claim another former colleague of ours, Suzanna Sherry. A pox on all these schools. Cf. BLONDIE, Rip Her to Shreds, on THE BEST OF BLONDIE (Chrysalis 1981).
(5.) Cf. Daniel A. Farber, "Terminator 2 1/2": The Constitution in an Alternate World, 9 CONST. COMMENT. 59 (1992); Symposium, The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies, 16 CONST. COMMENT. 483 (1999).
(6.) See Montgomery N. Kosma, Measuring the Influence of Supreme Court Justices, 27 J. LEGAL STUD. 333, 359 (1998).
(7.) 347 U.S 483 (1954).
(8.) BERNARD SCHWARTZ, A HISTORY OF THE SUPREME COURT 286 (1993) (quoting Justice Stanley Reed, who added that Brown, if not the most important decision in the Court's history, was at least "very close"). But see EARL WARREN, THE MEMOIRS OF EARL WARREN 310 (1977) (describing Baker v. Carr, 369 U.S. 186 (1961), as "the most important case of my tenure on the Court"). See generally RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1976); JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY (2001); HUGH W. SPEER, THE CASE OF THE CENTURY: A HISTORICAL AND SOCIAL PERSPECTIVE ON BROWN V. BOARD OF EDUCATION OF TOPEKA, WITH PRESENT AND FUTURE IMPLICATIONS (1993); Dennis J. Hutchinson, Unanimity and Desegregation: Decision-making in the Supreme Court, 1948-1958, 68 GLO. L.J. 1, 34-44 (1979); S. Sidney Ulmer, Earl Warren and the Brown Decision, 33 J. POL. 690 (1971).
(9.) 5 U.S. (1 Cranch) 137 (1803).
(10.) See generally, e.g., James M. O'Fallon, Marbury, 44 STAN. L. REV. 219 (1992); William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1.
(11.) Daniel A. Farber, Judicial Review and Its Alternatives: An American Tale, 38 WAKE FOREST L. REV. 415, 449 (2003).
(12.) Daniel A. Farber, The Importance of Being Final, 20 CONST. COMMENT. 359, 368 (2003); cf. Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) ("We are not final because we are infallible, but we are infallible only because we are final.").
(13.) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
(14.) Felix Frankfurter, John Marshall and the Judicial Function, 69 HARV. L. REV. 217, 219 (1955).
(15.) ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 40 (1st ed. 1960).
(16.) Sanford G. Levinson, Why I Do not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn't Either, 38 WAKE FOREST L. REV. 553, 571 (2003).
(17.) McCulloch, 17 U.S. (4 Wheat.) at 415 (emphasis omitted).
(18.) Hear LIZ PHAIR, Good Love Never Dies, on LIZ PHAIR (Capitol 2003) ("It only hurts when we burn our eyes / From staring too long at the sun / You gotta throw your hands up / And let the night come"). See generally Jim Chen, Rock 'n' Roll Law School, 12 CONST. COMMENT. 315 (1995).
(19.) Frankfurter, supra note 14, at 219.
(20.) One wonders what pressing work distracted Dan from contributing something to volumes 8 (1991) and 14 (1997).
(21.) See Daniel A. Farber, An Economic Analysis of Abortion, 3 CONST. COMMENT. 1 (1986); cf. Daniel A. Farber, Abortion After Webster, 6 CONST. COMMENT. 225 (1989); Daniel A. Farber, The Facts on Abortion, 5 CONST. COMMENT. 285 (1988).
(22.) See Daniel A. Farber, The Coase Theorem and the Eleventh Amendment, 13 CONST. COMMENT. 141 (1996).
(23.) See Daniel A. Farber, Gresham's Law of Legal Scholarship, 3 CONST. COMMENT. 307 (1986).
(24.) See Daniel A. Farber, Post-Modern Dental Studies, 4 CONST. COMMENT. 219 (1987).
(25.) See Daniel A. Farber & Suzanna Sherry, The Pariah Principle, 13 CONST. COMMENT. 257 (1996).
(26.) Gil Grantmore, an intimate friend of mine as well as Dan's, wishes to thank Dan for his indispensable assistance in ensuring the composition and publication of Gil Grantmore, Constitutional Law Haiku, 18 CONST. COMMENT. 481 (2001).
(27.) See Daniel A. Farber, The Case Against Brilliance, 70 MINN. L. REV. 917 (1986); Daniel A. Farber, Brilliance Revisited, 72 MINN. L. REV. 367 (1987).
(28.) Cf Daniel A. Farber, Our (Almost) Perfect Constitution, 12 CONST. COMMENT. 163 (1995).
(29.) ALFRED NORTH WHITEHEAD, THE AIMS OF EDUCATION 162 (1929).
(30.) EDWARD O. WILSON, CONSILIENCE: THE UNITY OF KNOWLEDGE 182-83 (1998).
(31.) In point of fact, he did. As usual, we didn't listen to him.
(32.) The allusion I intend here is awkwardly rendered, but a quick glance at Dan's Constitutional Commentary bibliography should eliminate any confusion. See Daniel A. Farber, "Nor Long Remember," 18 CONST. COMMENT. 423 (2001) (reviewing GEORGE P. FLETCHER, OUR SECRET CONSTITUTION: HOW LINCOLN REDEFINED AMERICAN DEMOCRACY (2001)). See generally DANIEL A. FARBER, LINCOLN'S CONSTITUTION (2003).
Jim Chen, James L. Krusemark Professor of Law, University of Minnesota Law School <[email protected]>.
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| Title Annotation: | Daniel Farber's contributions to constitutional law scholarship |
|---|---|
| Author: | Chen, Jim |
| Publication: | Constitutional Commentary |
| Article Type: | Testimonial |
| Date: | Dec 22, 2003 |
| Words: | 1762 |
| Previous Article: | The story of McCulloch: banking on national power. |
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